This chapter examines the somewhat jumbled relationship between data and intellectual property law, with a special focus on copyrights, patents, and trade secrets. Although these bodies of law are deeply concerned with and influenced by new technologies, they offer limited protections to the new industries forming around data today. Traditional copyright protection for data and databases is relatively thin, and the patentability of algorithms that can process data is somewhat unpredictable under current American jurisprudence. Meanwhile, although data may be the subject of trade secret protection, liability under this body of law extends only to those who wrongfully use or disclose valuable secret data. Responding in part to the limitations of traditional IP law, European policymakers in the 1990s enacted a special form of sui generis rights for databases and continue to explore useful new policies today. Despite repeated efforts by US lawmakers, no similar protections have been enacted into American law. In addition to exploring how the law applies to data, this chapter briefly highlights how new industrial and commercial uses of data connect with the policies underlying IP law—most significantly, the twin goals of promoting innovation and disclosing technological information.
This chapter provides an overview of the legal and economic impact of patent pools, with a particular focus on the methods scholars have used to study these institutions empirically. Patent pools are privately governed institutions that license complementary patent rights under unified agreements. Since the first American pools formed in the 1850s, these groups have touched diverse industries and raised challenging policy questions: when is cooperation among patent holders socially productive? Under what circumstances can a patent pool harm competition? Are patent pools sometimes the only way patent holders can extract the full value of the rights they hold? Should the government take affirmative steps to either encourage or discourage patent pools and if so, what forms of intervention are most appropriate? As this chapter explains, great scholarly effort has gone into understanding the impact these groups have had on competition, innovation, and society